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Beqiri v The Queen

Beqiri v The Queen

Case [2013] VSCA 39 4 March 2013

Appeal

Breach of Contract

Criminal Liability

Manufacture of Controlled Substances

Sentence

Remand

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0053

SAJMIR BEQIRI	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, PRIEST JA and VICKERY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 February 2013
DATE OF JUDGMENT	4 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 39
JUDGMENT APPEALED FROM	The Queen v Beqiri (Unreported, County Court of Victoria, Judge Dean, 20 February 2012)

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CRIMINAL LAW – Appeal against conviction and sentence – Appellant pleaded guilty – Appellant convicted on one count each of possession of a marketable quantity of an unlawfully imported border controlled drug and manufacture of a marketable quantity of a controlled drug – Total effective sentence six years' imprisonment with non-parole period of three years nine months – Whether extracting cocaine from impregnated clothes constitutes a ‘manufacture’ of cocaine for the purposes of s 305.1 of the Criminal Code Act 1995 (Cth) – Appeal against manufacture conviction allowed – Manufacture conviction quashed – Resentenced to five years six months’ imprisonment with non-parole of period three years four months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Director	Mr D D Gurvich	Office of Public Prosecutions (Cth)

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Priest JA. I agree with his Honour.

PRIEST JA:

Introduction

For reasons that follow, I am of the opinion that the appeal against conviction should succeed and the conviction on the second count on the Indictment should be quashed.

On the remaining count I would sentence the appellant to be imprisoned for five (5) years and six (6) months, and I would impose a non-parole period of three (3) years and four (4) months.

The charges and sentences

On 10 February 2012, the appellant pleaded guilty in the County Court at Melbourne to two drug offences under the Criminal Code Act 1995 (Cth) (‘the Code’). Count 1 on the Indictment was a charge of possession of a marketable quantity of an unlawfully imported border controlled drug, cocaine;[1] and count 2 charged the manufacture of a marketable quantity of a controlled drug, cocaine.[2] As I will later explain, both of these charges related to the same quantity of cocaine.
[1]Section 307.6(1) of the Code.
[2]Section 305.4(1) of the Code.

Following a plea, on 20 February 2012 the appellant was sentenced to be imprisoned for six (6) years on the first count and for three (3) years on the second. The sentence on count 2 was ordered to be wholly concurrent with the sentence on count 1; and a non-parole period of three (3) years and nine (9) months was fixed. It should be noted that each of these offences is punishable by a maximum penalty of

25 years’ imprisonment.

Initially the appellant sought leave to appeal against sentence only. Some time later, however, the applicant sought an extension of time within which to file an application for leave to appeal against conviction, and that application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beqiri v The Queen

Details

AGLC: Beqiri v The Queen [2013] VSCA 39
Case: [2013] VSCA 39
Decision Date: 4 March 2013

CaseChat Overview and Summary

In the case of Beqiri v The Queen, the appellant, Beqiri, appealed against his conviction and sentence for possession and manufacture of a marketable quantity of a controlled drug. The matter was heard in the High Court of Australia. Beqiri had pleaded guilty to the charges, but contested the legality of the manufacture conviction on appeal. The central issue before the court was whether the act of extracting cocaine from clothes that had been impregnated with the drug constituted the "manufacture" of cocaine within the meaning of section 305.1 of the Criminal Code Act 1995 (Cth). The court needed to determine if the extraction process met the threshold for being classified as a manufacturing offence.

The court examined the statutory definition of "manufacture" and considered the specific context of the extraction process. It held that the term "manufacture" in section 305.1 of the Criminal Code Act was not limited to the production of a drug from raw materials but also included processes that transform or prepare the drug for distribution. However, the court found that the act of extracting cocaine from clothes did not constitute a significant transformative process that would qualify as "manufacturing" under the statute. The court quashed the manufacture conviction but upheld the possession conviction.

Consequently, the court proceeded to resentence Beqiri. The High Court reduced the total effective sentence to five years and six months imprisonment, with a non-parole period of three years and four months. The court's decision resulted in the quashing of the manufacture conviction while maintaining the conviction for possession of a marketable quantity of a controlled drug. The reduced sentence reflected the court's findings on the manufacturing charge and the overall impact on the appellant's criminal history and culpability.

Orders